[e]xcept as provided in section
2511(2)(a)(ii), any person whose wire, oral, or electronic communication is intercepted,
disclosed, or intentionally used in violation of this chapter may in a civil
action recover from the person or entity, other than the United States, which
engaged in that violation such relief as may be appropriate.

We will come back to the statutes involved in the suit.To understand how they do or do not apply, it
is necessary to understand what happened to trigger the lawsuit.According to the opinion, in “late October
2013,” James and Bertha Huff attended a conference in

Bologna, Italy. They were accompanied
by Larry Savage, a colleague of Mr. Huff, and Mr. Savage's wife. Mr. Huff and
Mr. Savage attended the conference as representatives of the Kenton County
Airport Board, which oversees the operations of the Cincinnati/Northern Kentucky
International Airport (`CVG’). Mr. Huff serves as Chairman of the Board; Mr.
Savage serves as Vice–Chairman.

On the evening of October 23, 2013,
Carol Spaw sent Mr. Huff an e-mail inquiring whether he planned to attend a
dinner engagement in Italy the following evening. This was a typical task for Spaw,
and in fact part of her job duties. Spaw is employed as Senior Executive
Assistant to the Chief Executive Officer of CVG, Candace McGraw, as well as
liaison to the Kenton County Airport Board. In that role, one of her many tasks
is to make travel arrangements for board members.

During a break in the conference the following
day, Huff and Savage left the conference room and found a quiet, outdoor
balcony so they could discuss Airport personnel matters, including the
continued employment of McGraw. However, before diving into their discussion,
Huff made sure that nobody was around to overhear what they were saying. He
ensured that the door to the balcony was closed, and that no one was standing
in the courtyard below. . . .

[T]he two discussed whether they would attend the
business event later that evening. Agreeing they would attend, Huff attempted
to call Spaw via his iPhone. He was unsuccessful in reaching her . . .
apparently because he mis-dialed her number by one digit. Not knowing why the
call failed to go through, Huff placed his cell phone in the breast pocket of
his suit. Savage then successfully reached Spaw. He had a short conversation
with her and confirmed that he and his wife, along with Mr. and Mrs. Huff,
planned to attend the dinner engagement later that evening. Savage and Spaw
hung up their respective phones at the [end] of their conversation.

Huff v. Spaw, supra.

The opinion says that “[s]hortly thereafter, Huff placed the now
infamous `pocket dial’ to Spaw's office phone at the Airport.” Huff v. Spaw, supra. It explains that
Spaw answered the

phone and could immediately hear
Huff and Savage talking in the background, although she could not make out what
they were saying. Spaw said `hello’ at least six times within the first minute
of the call but neither Huff or Savage responded.

When neither . . . responded, Spaw placed the
call on speaker phone to try to hear what they were saying. She said `hello’
several more times, but again heard no response. Spaw enlisted the help of
Nancy Hill, another CVG employee, to help determine what Huff and Savage were
discussing. Within the first minute and a half of the phone call, Spaw and Hill
determined Huff and Savage were discussing CEO Candace McGraw's employment.
Spaw instructed Hill to take down notes of what she heard.

Approximately forty-one minutes into the
phone call, Spaw could tell Huff and Savage's conversation had come to an end
and they had returned to the conference room. At her deposition, she. . . .
[said] she remained on the line because she felt she needed to document what
she perceived as inappropriate behavior. . . . [S]he felt Huff and Savage were
plotting to take discriminatory action against McGraw, and possibly violate the
Board's code of conduct and criminal law. She intended to remain on the line to
hear if Huff and Savage made other potentially damning remarks.

Huff v. Spaw, supra.

The opinion says the conference “ended approximately one hour
and ten minutes into the call.” Huff v.
Spaw, supra. By that time, Spaw had “acquired” a recording device from

the Airport's IT department so she could record any
conversations she deemed relevant. Spaw listened in as Huff and Savage left the
conference room and walked back to their respective hotel rooms. Along the way,
Spaw heard Huff and Savage talk about completely innocuous subjects such as
gospel music, taking a nap and meeting in the lobby later in the evening. Spaw
. . . remained on the line hoping to hear additional damning conversations.

Approximately one hour and fifteen minutes into the
call, Huff returned to his hotel room where . . . Bertha was waiting. . . .
Alone in their room, the husband and wife talked about innocent things like all
couples do. But Huff also shared with his wife many of the details about his
conversation with Savage earlier in the day, including details about Airport
personnel matters. Eight-seven minutes into the call, Spaw used the recording
device provided by the IT department to record the final four minutes of the
Huffs' conversation. . . .

[T]he Huffs laid down on their hotel
bed and. . . . continued to discuss airport personnel matters and McGraw, and
Spaw continued to record what she overheard. While on the bed, Mr. Huff looked
at his cell phone and realized it had an open call with Spaw's office phone.

He initially thought the call had been
open for a minute and twenty-nine seconds, but later realized [it] had actually
lasted one hour and twenty-nine minutes to this point. Mr. Huff testified that
he immediately hung up the call. However, cell phone records indicate that the
call lasted one hour and thirty-one minutes, suggesting he left the call open
for an additional two minutes after first noticing it.

Huff v. Spaw, supra.

After the call ended, Spaw

took the handwritten notes and
converted them into a typewritten transcript of the conversation. The . . .
transcript is nothing close to a verbatim recitation of the conversations, but
more akin to a summary with intermittent quotations.

Spaw also uploaded the audio recording
onto her office computer, and later uploaded the recording onto a thumb drive
so that it could be transferred to a third-party company to enhance the audio.
Both the transcript and audio recording were eventually shared with members of
the Board.

Huff v. Spaw, supra.

The opinion notes a few more relevant facts before
addressing the legal issues:

[T]he Huffs knew pocket dials are
relatively common in the age of smart phones. . . . Mrs. Huff admitted during
her deposition that she has pocket dialed people `many times .’ . . . Mr. Huff .
. . eventually admitted, `I'm certain I have [pocket dialed people]. . . and he `believed’ he had placed previous
pocket dials. . . .However, Mr. and Mrs. Huff testified that they expect the
recipient of a pocket dial call to hang up once they discover they were
inadvertently called.

Huff v. Spaw, supra.

The issue before the District Court Judge was the Huff’s
motion for a temporary restraining order and preliminary injunction, the nature
of which is not described in this opinion.Huff v. Spaw, supra. The judge heard oral arguments from the
lawyers on each side as to why the motion should or should not granted, and
during the arguments they “agreed that if the Court concludes Plaintiffs are
not likely to succeed on the merits – and . . . cannot prevail as a matter of
law -- then summary judgment pursuant to Rule 56(f), Federal Rules ofCivil Procedure, would be appropriate.” Huff v. Spaw, supra.

As Wikipedia explains, in U.S. civil practice a judge can award summary judgment for a party to a civil suit

before trial, effectively holding
that no trial will be necessary. Issuance of summary judgment can be based only
upon the court's finding that:

there
are no disputes of `material’ fact requiring a trial to resolve,
and

in
applying the law to the undisputed facts, one party is clearly entitled to
judgment. . . .

A `material fact’ is one which, depending upon what the
factfinder believes "really happened," could lead to judgment in
favor of one party, rather than the other.

Huff v. Spaw, supra.

As noted above, the Huffs sued under 18 U.S. Code § 2520(a),
which creates a civil cause of action for those whose communications are the
target of activity that violates 18 U.S. Code § 2511.The judge began his analysis by noting that § 2511(1)(a)((i) makes it a crime to unlawfully and intentionally intercept “any
wire, or electronic communications” and § 2511(c) makes it a crime to disclose,
“or endeavor to disclose” the contents of such communications knowing they were
illegally intercepted.Huff v. Spaw, supra.

At the oral arguments, the Huffs claimed that (i) the first
87 minutes of their face-to-face communications were “oral” communications but
that (ii) once Spaw began recording the call the communications became “oral”
and “wire” communications because they were “transmitted over wire to [Spaw’s]
office telephone, and then intercepted by a recording device.” Huff v. Spaw, supra.The judge analyzed whether either or both
arguments were valid, starting with the purely “oral” communications.Huff v.
Spaw, supra.

Title III of the Omnibus Crime Control and Safe Streets Act
defines “oral communication” as one “`uttered by a person exhibiting an
expectation that such communication is not subject to interception under
circumstances justifying such expectation'”.Huff v. Spaw, supra (quoting 18 U.S. Code § 2510(2)) (emphasis added).
The judge noted, therefore, that § 2511 “only protects oral communications to
the extent that the participants have both (1) a subjective expectation that
their conversation will not be intercepted and (2) that expectation is
objectively reasonable” and then analyzed whether the Huffs’ conversations met
that standard.Huff v. Spaw, supra.

The judge then analyzed whether they did, in fact, satisfy
that standard:

[The Huffs] unquestionably did not
expect that their face-to-face conversations would be intercepted.
The very nature of their conversations compels this conclusion. Certainly [Huffs]
and Savage would not have openly discussed private Airport personnel matters,
including possibly replacing the CEO, knowing others might be listening. Moreover,
their actions showed they did not intend others to overhear or intercept their
conversations.

A significant portion of the
intercepted communications took place in two places: a private balcony and a
hotel bedroom. Mr. Huff was alone with Savage on the balcony, and ensured no
one was around before discussing personnel issues. Similarly, [he] was alone
with his wife in their hotel room when he recounted his previous conversation
with Savage. Under these circumstances, [the Huffs] clearly expected that their
conversations would remain private and free from interception. . . .

Huff v. Spaw, supra.

He reached a different conclusion as to whether the
expectation was reasonable:

Here, the question is whether it was objectively
reasonable for [the Huffs] to expect [Spaw] would not answer the inadvertently
placed phone call, remain on the line and listen to [their] face-to-face
conversations, and record a small portion of the call.

The Court concludes society is not prepared to
recognize [their] expectation as reasonable. . . . At their depositions, both [Huffs]
agreed they had placed `pocket dial’ calls from their cell phones in the past. .
. . Mr. Huff knew he was carrying his cell phone; he had just hung it up and
placed it in his pocket when he began the conversations at-issue in this case.
Thus, he knew he was carrying a device that was capable of giving a third party
audible access to his conversations without him ever knowing. Knowing that, it
is unreasonable for him to expect that anything he says while carrying that
device will remain free from interception as it was done here. . . .

Society has come to accept the fact
that people often place inadvertent calls from their cell phones. This fact has
become so well accepted that society has given the technological annoyance a
name: the `pocket’ or `butt’ dial. . . . And society recognizes the
consequences of a pocket dial. . . . Wikipedia.com, states that `. . . . the recipient
is likely to know the caller, and may overhear conversations that the caller
would not want them to hear.’ Pocket Dialing,
http://en.wikipedia.org/wiki/Pocket—dial (last visited Jan. 24, 2014) (emphasis
added).

That is exactly what happened here.
Because society recognizes that this is a consequence of carrying a cell phone,
the Court simply disagrees with [the Huffs] that they had an objectively
reasonable expectation that [Spaw] would not listen in to their face-to-face
conversations.

But what about the fact
that [Spaw] listened for ninety-one minutes and recorded the last four minutes
of the call? [The Huffs]. . . . agree there was nothing wrong with [her]
answering the pocket dial. But they take issue with the fact that [she]
remained on the line for so long even though Mr. Huff never engaged her in
conversation. [The Huffs] believe society is willing to recognize that it is
reasonable to expect a recipient of a pocket dial to hang up once she discovers
that the call was inadvertently placed.

The Court disagrees. While it may be
polite for the recipient to hang up once she discovers she has received a
pocket dial, it is not reasonable to expect everyone to do so. If an individual
wants to keep his conversations private, the onus is on him to do so. He cannot
give another person access to his conversation and then put the burden on that
individual to determine that she should take no part in it. Therefore, the
court finds that [the Huffs’] expectation of non-interception was unreasonable
here.

Huff v. Spaw, supra.
The judge concluded this part of his analysis by noting that “[i]f If anyone
must bear the brunt of the embarrassing consequences of this pocket dial, it
must be the caller; not the recipient who had every right to answer the call
and remain on the line.”Huff v. Spaw, supra.

any aural transfer made in whole or in
part through the use of facilities for the transmission of communications by
the aid of wire, cable, or other like connection between the point of origin
and the point of reception . . . furnished or operated by any person engaged in
providing or operating such facilities for the transmission of interstate or
foreign communications or communications affecting interstate or foreign
commerce and such term includes and electronic storage of such communication.

Huff v. Spaw, supra.

The Huffs claimed the case involved wire communications
because “there was an aural transfer between themselves and [Spaw], which was
transmitted in part by wire to [her] office telephone and then intercepted by [Spaw]
via the recording device.” Huff v. Spaw,
supra.The judge did not agree,
finding that 18 U.S. Code § 2510(1) required him to

identify the aural transfer's point of
origin and point of reception and then determine . . . whether the transfer was made in whole or in
part `by the aid of wire, cable, or other like connection.’ See18 U.S. Code § 2510(1). [The Huffs] identified [Spaw’s] office telephone as the
point of reception, which, if true, would make the aural transfer a `wire
communication.’

But [her] office telephone was not the
point of reception; Mr. and Mrs. Huff, having a face-to-face conversation, were
the point of origination and reception. [Spaw’s] office phone was the `electronic,
mechanical, or other device’ used to intercept [the Huffs’] face-to-face
conversation. See18 U.S. Code § 2510(5). The recording device
served as an additional device used to enhance the interception of the office
phone.

Because there was no `oral, cable, or
other like connection between Mr. and Mrs. Huff, their conversation was not a
`wire communication’ as that term is defined by § 2510(1).

Huff v. Spaw, supra.

He therefore held that

[h]aving failed to establish that they
were engaged in a type of communication that is protected by the Act, [the
Huffs] cannot bring a cause of action against [Spaw] under 18 U.S. Code § 2520(a) for any violation of 18 U.S. Code § 2511. [Spaw is] therefore
entitled to judgment as a matter of law on each of Plaintiffs' federal claims.

Wednesday, January 29, 2014

After MaKenna Portuguez obtained a restraining order to
prevent Ethan Espiritu, a former friend and high school classmate, from
harassing her”, Ethan appealed, claiming “the evidence was insufficient to
support the trial court's finding that he had sent certain unwanted text
messages to MaKenna.”Portuguez v. Espiritu, 2014 WL 261327
(California Court of Appeals 2014).As
Wikipedia explains, a restraining order is a

court order that requires a party to do, or to refrain
from doing, certain acts. These orders flow from the court's injunction
power to grant equitable remedies. A party that refuses to comply with an
order faces criminal or civil penalties. . . .

In this case, Portuguez asked the court to issue a
restraining order under California Code of Civil Procedure § 527.6 to prevent
further incidents of conduct she described at the hearing on her request.Portuguez
v. Espiritu, supra.According to the opinion, at the hearing the
judge held on her motion for the order, Portuguez testified that in 2010

she gave Ethan her e-mail address and
password so he could set up a Skype account for her. When Ethan was at her home
in December of that year, she gave him the password for her home wireless
Internet, and he connected his telephone to her computer. MaKenna testified
that whenever she is at home, her telephone automatically connects to the
wireless Internet.

According to MaKenna, Ethan started
compromising her Internet accounts in mid–2011 and continued to do so for
several months. He changed her passwords and enabled a password recovery
feature that sent her new passwords to his e-mail account.

MaKenna also testified that
in the summer of 2011, various Internet accounts were created in her name.
Numerous messages concerning her relationship with Ethan that appeared to be
from MaKenna but actually were not were posted to or sent from these accounts.
For example:

— Several messages were posted over the
course of a week on a Twitter account that included MaKenna's name and a
photograph from her Facebook page. Some messages contained abusive and obscene
language that expressed anger over the termination of the relationship, while
others mentioned a `Cinderella story’ and expressed sadness the relationship
had ended. . . .

Portuguez v. Espiritu,
supra.Portuguez also said she “received numerous
unwanted communications” from Espiritu “in the summer and fall of 2001”, including
these:

— In November, MaKenna received a
series of text messages from Ethan while she was riding home from school with
her friend Kyle. One . . . stated: `I
knew you were a cheat. You always were. You lying bitch. I hope they [f]* *k you
and get you pregnant so you can kill another one.’ Another stated: `Girl[,][I]
hate you. I wish[ ] you would disappear. You messed up so don[']t even come
around me.’ . . . MaKenna . . . `was upset that [Ethan] would talk to [her]
that way.’. . .

Portuguez v. Espiritu,
supra.

Portuguez also testified that from “December 2011 through
February 2012, MaKenna testified she received several text messages through a
service called Pinger, which allows subscribers to send text messages without
paying a fee.”Portuguez v. Espiritu, supra.
They included the following:

— `You left [C]atholic school to go to
a public school. Now you left public to go back to a private [C]atholic school?
If you think you're escaping the problem, you aren't. I asked people and they
wouldn't tell me but I have my ways of finding things out.’ MaKenna found this
message `pretty odd and scary.’

— `I don't know why you keep changing
your number when all I want to do is talk to you. [S]eeing you Friday made me
realize what I've lost. [P]lease answer back. I miss you.’

Portuguez v. Espiritu,
supra.

The opinion explains that records obtained from Pinger

listed an account username that
combined a nickname for MaKenna with Ethan's date of birth, contained the
e-mail address that was created in MaKenna's name in the summer of 2011, and
showed the messages originated from IP addresses for MaKenna's telephone and
home wireless Internet. MaKenna denied sending the messages.

MaKenna testified she transferred to a
different high school the day after she received the text message from Ethan
about flattening her friend Kyle's tires because she `was tired of the
harassment from Ethan.’ She also testified she wanted a restraining order
because she was `afraid of Ethan’ based on his creation of Internet accounts in
her name, impersonation of her, sending her messages, and attempts to find out
her mobile telephone number and location.

Portuguez v. Espiritu,
supra.

To support her application, Portuguez called Jeffrey Tutton,
a computer security

specialist, to testify . . . on
cyberimpersonation. Tutton testified that every device manufactured by
Apple Inc. has a unique device identifier (UDID), and every device connected to
the Internet (whether manufactured by Apple Inc. or another company) has an
Internet protocol (IP) address to and from which electronic information is
sent. According to Tutton, the UDID of another person's telephone can be
obtained by physically accessing the telephone, or by running readily available
UDID detection software on one's own telephone while it is connected to the
same wireless network to which the other person's phone is connected or while
it is physically connected to a computer on the other person's network.

Tutton also explained that the IP
address of a device connected to the Internet can be obtained by physically
accessing the device; by obtaining the password for the network to which the
device is connected, accessing the network, and running an Internet connection
speed test on the network; or by sending an e-mail and getting a response
stating that the e-mail was opened and identifying the IP address of the device
on which it was opened. Finally, Tutton testified that by obtaining the UDID
and the IP address for another person's telephone, entering the UDID into a
program on one's own telephone, and remotely accessing the other person's IP
address, one can send from his own telephone text messages that appear to have
been sent from the other person's telephone. . . .

Portuguez v. Espiritu,
supra.

Espiritu’s testimony at the hearing “differed substantially”
from Portuguez’s:

Ethan contradicted MaKenna's testimony
about his access to her home Internet and her Internet accounts. Ethan denied
he ever connected his device to the wireless Internet at MaKenna's house, but
admitted he logged on to her home computer with her and accessed a Web site.
Ethan admitted changing some of MaKenna's Internet account passwords because he
was angry, but denied ever compromising her Google e-mail account. . . .

Ethan testified he broke up with MaKenna
in mid-October 2011 and `didn't want to do anything with her anymore.’ He
admitted he sent her the message in November 2011 calling her a `cheat’ and a `lying
bitch’ because he was angry she was with Kyle, but denied ever threatening to
flatten Kyle's tires. Ethan also denied sending other messages MaKenna claimed
she had received from him after the breakup. In fact, Ethan testified, he
received several unwanted messages from MaKenna. . . .

Finally, Ethan testified he never had a
Pinger account and never sent MaKenna any text messages through Pinger. . . .
He testified such accusations `made [him] very jumpy,’ and he found it `nerve-racking
that someone [was] using his name and . . . texting other people. . . .[I]t's
made [his] life a wreck. It's ruined [his] ... social life at school.’

Portuguez v. Espiritu,
supra.

In his appeal, Espiritu argued that the restraining order “must
be reversed because it `is contrary to substantial evidence in the record.’” Portuguez v. Espiritu, supra.The Court of Appeals began its analysis of his argument by noting that
the standard on appeal is

`whether the findings (express and
implied) that support the trial court's entry of the restraining order are
justified by substantial evidence in the record.’ (R.D. v. P.M. (California Court of Appeals 2011) 202 Cal.App.4th 181). Evidence is substantial if it is
reasonable, credible, and of solid value such that a reasonable person might
accept it as adequate to support a conclusion. (Braewood Convalescent
Hospital v. Workers' Comp. Appeals Bd. (California Supreme Court 1983)
34 Cal.3d 15. . . .). In reviewing a record for substantial evidence, we resolve
all factual conflicts and credibility questions in favor of the prevailing
party and draw all reasonable inferences in support of the trial court's order.
(USS–Posco Industries v. Edwards, (California Court of Appeals 2003) 111
Cal.App.4th 436). . . `If . . . substantial evidence supports the trial
court's findings and conclusions, the judgment must be affirmed.’ (Board of
Education v. Jack M. (California Supreme Court 1977) 19 Cal.3d 691).

Portuguez v. Espiritu,
supra.

The court then explained that, under California law,
harassment is

`[a] knowing and willful course of
conduct directed at a specific person that seriously alarms, annoys, or
harasses the person, and serves no legitimate purpose. The course of conduct
must be such as would cause a reasonable person to suffer substantial emotional
distress, and must actually cause substantial emotional distress to the
petitioner.’ (California Code of Civil Procedure § 527.6(b)(3)). A `[c]ourse of
conduct’ is a pattern of conduct composed of a series of acts over a period of
time, however short, evidencing a continuity of purpose, including . . . making
harassing telephone calls to an individual, or sending harassing correspondence
. . . by any means. . . .’ ’ (California Code of Civil Procedure § 527.6(b)). If
. . . the trial court `finds by clear and convincing evidence that unlawful
harassment exists, an injunction shall issue prohibiting the harassment.’ ’ (California Code of Civil Procedure § 527.6(i)).

Portuguez v. Espiritu,
supra.

The Court of Appeals found the evidence Portuguez presented
was sufficient to justify

the challenged order. The trial court
heard testimony from Ethan that he disrupted MaKenna's Internet accounts by
changing the passwords and sent her text messages containing angry and obscene
language after the breakup of their relationship. The court also heard
testimony from MaKenna that over the course of several months, Ethan sent her
numerous unwanted electronic communications, some professing love for her and others
hatred. The court could infer from [her] testimony that Ethan had created
Internet accounts in her name and posted private information about the status
of their relationship and MaKenna's emotional state.

Tutton provided expert testimony from which
the court could infer that Ethan cyberimpersonated MaKenna by using the Pinger
account to send her threatening text messages and make it appear she had sent
them herself. Such a `socially unacceptable course of conduct would have
seriously alarmed, annoyed, or harassed a reasonable person, and would have
caused a reasonable person to suffer substantial emotional distress.’ (Brekke
v. Wills (California Supreme Court 2005) 125 Cal.App.4th 1400.) Indeed,
MaKenna testified that Ethan's barrage of unwanted communications disturbed her
sleep and made her so upset and fearful that she had to change schools.

Portuguez v. Espiritu,
supra.

Espiritu claimed the order should be reversed because the
trial court’s “essential}

`factual finding’ that he sent the text
messages that were delivered to MaKenna through Pinger `is contrary to the
expert testimony.’ According to Ethan, Tutton testified that `momentary
possession’ of MaKenna's telephone was required to obtain the UDID, but it was
`uncontroverted that [Ethan] never had possession of the device.’ Ethan further
contends reversal is required because `all the evidence shows’
MaKenna `was texting herself out of spite due to being rejected by [Ethan].’

Portuguez v. Espiritu,
supra (emphasis in the original).

The Court of Appeals did not agree, noting that Portuguez
and Espiritu both denied

sending them, but the court expressly
found MaKenna more credible than Ethan. The records obtained from Pinger showed
the messages originated from a UDID and IP address belonging to MaKenna, but
Tutton testified that a person who had physically accessed MaKenna's
telephone or whose device was connected to her wireless Internet
network while her telephone was also connected could obtain the UDID
and IP address and later use that information to send a text message from some
other device and make it appear the message had been sent from MaKenna's
telephone.

Although . . . no evidence was
presented that Ethan had physical access to MaKenna's telephone, based on
Tutton's testimony, Ethan could have obtained MaKenna's UDID by remotely
accessing her home wireless Internet network (for which she testified Ethan had
the password) at any time her telephone was connected. Thus, while some
evidence supported Ethan's theory that MaKenna sent herself the text messages
through Pinger, other evidence supported MaKenna's theory that Ethan sent them
and made it look like she did.

Portuguez v. Espiritu,
supra (emphasis in the original).

The Court of Appeals also pointed out that, as the trial
judge recognized, who sent the

messages through Pinger was `not the
only fact in the case.’ Even if we disregard the evidence in favor of MaKenna
on that issue, other evidence established Ethan's harassment. . . . For example,
there was evidence that Ethan (1) disrupted MaKenna's Internet accounts by
changing the passwords on multiple occasions; (2) set up false Internet
accounts in her name and posted private information about her; (3) disturbed
her sleep by sending her nine text messages within 25 minutes; and (4) sent her
multiple messages that contained obscene or threatening language and that
caused her to switch schools to get away from him.

Zhang worked as a computer systems manager for `Company A’
until July 6, 2010. . . . On June 28, 2010, Zhang copied approximately 6,700 of
Company A's confidential files from an unspecified location on Company A's
internal network to the desktop computer provided to Zhan g by Company A. . . .

Zhang then transferred some or all of these files from his
computer to one of Company A's servers (the `Server’). . . . The copied and
transferred files contained `sensitive information regarding the operation and
development of Company A's computer network.’ . . . Two days later, on June 30,
2010, Zhang gave Company A written notice that his last day with the company
would be July 6, 2010. . . .

On Saturday, July 3, 2010, Zhang copied
approximately 2,800 more confidential files from Company A's network to his
desktop computer. . . . On Sunday, July 4, 2010, Zhang copied roughly 300 more
confidential files to his computer. . . . Zhang then transferred some or all of
the confidential files that he had accumulated on his desktop computer that
weekend to the Server. . . .

Next, Zhang established an Internet connection between the
Server and Internet storage sites in Sweden and Germany that Zhang maintained. .
. . Zhang then used this connection to transfer an unspecified number of
Company A's confidential files to the Internet storage sites. . . . After
completing this transfer, Zhang covered his digital tracks by deleting
unspecified files from the Server. . . . The deletion of these files eliminated
evidence of Zhang's transfers and prevented the Server from functioning as
intended. . . .

U.S. v. Yijia Zhang, supra.If you
are interested, you can find the indictment against Zhang here.

provides that an `indictment . . . must be a plain, concise,
and definite written statement of the essential facts constituting the offense
charged.’ `A facially sufficient indictment (1) contains the elements of the
offense intended to be charged, (2) sufficiently apprises the defendant of what
he must be prepared to meet, and (3) allows the defendant to show with accuracy
to what extent he may plead a former acquittal or conviction in the event of a
subsequent prosecution.’ U.S. v. Stock, 728 F.3d 287 (U.S. Court of Appeals for the 3d Circuit 2013). . . .

`Under Rule
12(b)(3)(B), a defendant may contest the sufficiency of an indictment on the
basis that it fails to state an offense . . . [because] the specific facts
alleged fall beyond the scope of the relevant criminal statute, as a matter of
statutory interpretation.’ U.S. v. Stock,
supra (internal quotation marks omitted). A district court evaluates a
challenge under this Rule by `determining whether, assuming all of those facts
as true, a jury could find the defendant committed the offense for which
he was charged.’ U.S. v. Huet, 665 F.3d 588 (U.S. Court of Appeals for the 3d Circuit 2012).

The Supreme Court instructs that `ambiguity
concerning the ambit of criminal statutes should be resolved in favor of
lenity.’ Jones v. U.S., 529 U.S. 848 (2000). Accordingly, `when
choice has to be made between two readings of what conduct Congress has made a
crime, it is appropriate, before [the Court] choose[s] the harsher alternative,
to require that Congress should have spoken in language that is clear and
definite.’ Jones v. U.S., supra.

U.S. v. Yijia Zhang, supra.

The judge
then noted that the National Stolen Property Act (NSPA) makes it a crime for

a person to `transport[ ],
transmit[ ], or transfer[ ] in interstate or foreign commerce any goods, wares,
merchandise, securities or money, of the value of $5,000 or more, knowing the
same to have been stolen, converted or taken by fraud.’ 18 U.S. Code §
2314. The digital files at issue in this case are neither securities nor money.
. . .

Thus, to survive Zhang's motion to dismiss, the indictment must allege:
(1) that Zhang transported, transmitted, or transferred goods, wares, or
merchandise in interstate or foreign commerce; (2) that those goods, wares, or
merchandise had a value of $5,000 or more; and (3) that Zhang knew `the same’
to have been stolen, converted, or taken by fraud. . . .

U.S. v. Yijia Zhang, supra.

In his motion to dismiss, Zhang argued that the indictment
failed to state an offense

for two reasons. First, Zhang argues
that t he Indictment fails to allege that `the stolen item was in some tangible
or physical form’ when it was stolen. . . . Second, Zhang argues that the
Indictment fails to allege the existence of a market for the confidential
information stolen by Zhang. . . .

U.S. v. Yijia Zhang, supra.

The judge
therefore found that Zhang’s arguments required him to “determine whether the
NSPA requires the government to make these allegations, and, if it does so
require, whether the government makes these allegations in the Indictment.” U.S. v. Yijia Zhang, supra.He began with the first issue:whether “the NSPA includes a tangibility
requirement”.U.S. v. Yijia Zhang, supra.

In 1985,
in Dowling v. U.S., 473 U.S. 207, the
Supreme Court addressed whether the

NSPA criminalizes the `interstate shipments of bootleg and
pirated sound recordings and motion pictures whose unauthorized distribution
infringed valid copyrights.’ Dowling v.
U.S., supra. The indictment. . . . alleged that the `unauthorized use of
the musical compositions rendered the phonorecords “stolen, converted or taken
by fraud” within the meaning of the [NSPA].’ Dowling
v. U.S., supra. Thus, the Supreme Court decided whether the NSPA
criminalizes the interstate shipment of bootleg records where nothing tangible
was stolen, converted, or taken by fraud.

The Supreme Court began . . . by noting that the
text of the NSPA does not plainly cover the interstate shipment of bootleg
records for two reasons. First, copyrighted works are not obviously goods,
wares, or merchandise. The Court explained that the NSPA `seems clearly to
contemplate a physical identity between the items unlawfully obtained and those
eventually transported’ by `requiring that the “goods, wares, [or] merchandise”
be “the same” as those “stolen, converted or taken by fraud”.’ Dowling v. U.S., supra (quoting 18
U.S. Code § 2314). . . . Second, the Court noted that `interference with
copyright does not easily equate with theft, conversion, or fraud.’ Dowling v. U.S., supra. . . . `[I]nfringement
plainly implicates a more complex set of property interests than . . . theft,
conversion, or fraud.’ Dowling v.
U.S., supra.

. . . The Court found Congress's purpose in enacting the NSPA
was to `assist the States' efforts to foil the “roving criminal,” whose
movement across state lines. [It] reasoned that `the need to fill with federal
action an enforcement chasm created by limited state jurisdiction . . . simply
does not apply to’ interstate shipment of `merchandise whose contraband
character derives from copyright infringement’ because `Congress has the
unquestioned authority to penalize directly the distribution of goods that
infringe copyright, whether or not those goods affect interstate commerce.’ Dowling v. U.S., supra.

The Court
concluded that the NSPA does not `plainly and unmistakably’ apply to the
interstate shipment of bootleg records. Dowling v. U.S., supra. [It therefore] reversed the
defendant's conviction under the `time-honored interpretive guideline that
ambiguity concerning the ambit of criminal statutes should be resolved in favor
of lenity.’ Dowling v. U.S., supra.

U.S. v. Yijia Zhang, supra.The judge
noted that the U.S. Circuit Courts of Appeals “for the 1st, 2nd, 7th, and 10th
Circuits have concluded that only tangible property can constitute goods,
wares, or merchandise” under the NSPA. U.S.
v. Yijia Zhang, supra.

He
explained that the prosecution “urges us to decide that the NSPA includes no
tangibility requirement” and that “Dowling does not compel a
contrary conclusion for two reasons.”U.S. v. Yijia Zhang, supra.

First, the government argues Dowling did not
hold that the NSPA requires `a physical identity between the items unlawfully
obtained and those eventually transported, and hence some prior physical taking
of the subject goods’ . . . because that language is dictum. . . .

The government explains that Dowling merely
`held that what the defendant transported across state lines -- the physical
records -- was not the “the same” as the thing that he had taken-the copyright
holder's statutory right to limit and license copying.’ . . . We agree. But,
dictum or otherwise, the Supreme Court noted that the `common-sense meaning of
the statutory language’ limits application of the NSPA to `physical “goods,
wares, [or] merchandise” that have themselves been ‘stolen, converted or taken
by fraud.’ Dowling v. U.S., supra
(quoting 18 U.S. Code § 2314). We find this analysis to be highly
persuasive. . . .

It is unclear whether this change removed any
tangibility requirement. On the one hand, the new verbs -- transmits and
transfers -- might apply only to the nouns `securities’ and `money,’ which are
readily transmitted and transferred in digital form. On the other hand, the addition of these verbs
might signal that the NSPA now criminalizes the theft of goods, wares, or
merchandise that can be transmitted or transferred in digital form.

U.S. v. Yijia Zhang, supra.

Ultimately,
the judge found that the NSPA is “ambiguous” as to whether stolen

`goods, wares, and merchandise’ must take a physical form. The
3rd Circuit directs that the ordinary meaning of goods, wares, and merchandise
is `personal property or chattels’ that are `ordinarily a subject of commerce.’
U.S. v. Seagraves, 265 F.2d 879
(1959). Based on this precedent, we
think the most natural reading of `goods, wares, and merchandise’ is personal
property or chattels that `have some sort of tangible existence.’ U.S. v. Smith, 686 F.2d 234 (U.S Courtof Appeals for the 5th Circuit 1982). . . .

This interpretation fits
best with the statutory requirement that the goods, wares, or merchandise
transported in interstate or foreign commerce be the same as the goods, wares,
or merchandise stolen, converted, or taken by fraud; and is consistent with the
approaches taken by every Court of Appeals to consider the issue.

The government's contrary position is not unreasonable. In
this digital era, we think that intangible products could reasonably be
understood to constitute personal property that is ordinarily the subject of
commerce. . . . However, the government's position merely demonstrates that
there is some ambiguity surrounding the NSPA's reach.

U.S. v. Yijia Zhang, supra.

The judge
therefore held that to state an offense under the NSPA, the indictment must

allege that Zhang transported, transmitted, or transferred
something that had been stolen, converted, or taken by fraud while in a tangible
form. The value of that object may derive from intangible information contained
within the item; but without a physical manifestation, the stolen property is
not goods, wares, or merchandise within the meaning of the NSPA.

U.S. v. Yijia Zhang, supra.

The judge
then took up the other issue:whether
the indictment alleged the information Zhang stole “`ever took physical
form.’”U.S. v. Yijia Zhang, supra.Zhang
pointed out that, “`the Government alleges that Mr. Zhang transferred
electronic files over the internet from a network to a server.’” U.S. v. Yijia Zhang, supra.

The government responds that `storage of
information in digital format on a server, a computer hard drive, or a disk is
just as physical as the storage on a piece of paper.’ . . . The government [claims]
the Indictment satisfies any tangibility requirement because `the material had
a physical embodiment on the servers of Company A’ and on Zhang's `storage
space in Europe.’

U.S. v. Yijia Zhang, supra.

The judge
then explained that he agreed with the prosecution that information stored

in computer hardware has a physical manifestation. .
. . If the government had accused Zhang of stealing some part of Computer
A's server that stored propriety information, we would have had little
difficulty concluding that the tangibility requirement were satisfied. .
. . But . . . the government accuses Zhang of stealing information by
transmitting that information over the Internet. This transmission was . . . the
act that rendered the digital files stolen, and the act that the government
argues violated the NSPA.

The government has not alleged, as it must, that the digital
files transmitted by Zhang had been stolen, converted, or taken by fraud while
in a tangible form. Bits transmitted over the Internet are intangible
information falling outside the NSPA's ambit. Accordingly, the government has
failed to state an offense under the NSPA.